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Article 36/2022

On what basis did the labour appeal court recently, in SA Teachers Union obo Kruger v Gauteng Department of Education and Others (2021) 32 SALLR 12 (LAC); (2021) 42 ILJ 827 (LAC), determine that the remedies of compensation and reinstatement cannot be granted simultaneously?

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The principles identified by the court entail, amongst others, the following:

in the case of a dismissal for misconduct or incapacity: being substantively or substantively and procedurally unfair

  • the primary relief is reinstatement or re-employment
  • the employee is to resume employment on the same terms and conditions as at the date of dismissal
  • the extent of retrospectivity is dependent on the discretion to be exercised by the arbitrator – the only limitation on such discretion is that it cannot be fixed earlier than the actual date of dismissal
  • compensation is an alternative relief to the primary relief and is mutually exclusive to the remedies of reinstatement/re-employment

dismissal for operational requirements/automatically unfair: substantively or substantively and procedurally unfair

  • the same principles as set out above apply here subject to s193(3) of the LRA – in addition, any other order may be made as considered to be appropriate

dismissal for misconduct/incapacity/operational requirements/automatically unfair: procedurally only unfair

  • in terms of s193(2)(d) of the LRA, no reinstatement/re-employment is applicable but only compensation
October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?